DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

 ex-AZ3, USN
Docket No. ND06-00878

Applicant’s Request

The application for discharge review was received on 20060620.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070405.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

None.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Excerpts from Service Record (15 pgs)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  USNR (DEP)	20000616 - 20000622	COG
	Active:    USN	20000623 – 20050206	HON

Period of Service Under Review:

Date of Enlistment:  20050207		Date of Discharge:  20050602

Length of Service (years, months, days):

	Active:    00  03  26  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  50 

	Unauthorized absence:  Undetermined from the record
	Confinement:		  Undetermined from the record

Age at Entry:  22 

Years Contracted:  2 (1-month extension)

Education Level:  12				AFQT:  49

Highest Rate:  AZ3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  5.0 (1)*		Behavior:  2.0 (1)* 			OTA:  3.71*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Medal FPE 03JUN, National Defense Service Medal, Navy and Marine Corps Achievement Medal, Overseas Service Ribbon, Pistol Ribbon, Rifleman Ribbon.

*Evaluation period covers only first 7 days of period of service under review.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events: 

050207:	Reenlisted this date for a term of 2 years, with 1-month extension.

050214:	Detached from VFA-87, Oceana, VA, and transferred to HSL-42, Mayport, FL.

050315:	Began period of lost time.

050505:	Ended period of lost time.

050602:	DD Form 214: Applicant discharged in lieu of trial by court-martial under other than honorable conditions; authority: MILPERSMAN 1910-106.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050602 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Board presumed the Applicant was charged with an offense or offenses under the Uniform Code of Military Justice for which a punitive discharge was authorized (the information in the record suggests that the Applicant failed to report to his new duty station as ordered and entered into a period of unauthorized absence of greater than 30 days); that the Applicant voluntarily submitted a proper request for administrative separation in lieu of trial by court-martial for the offense or offenses of which he had been charged; and that his request was approved by appropriate authority.  The Applicant presented no evidence to rebut the presumption of regularity in this case.  When discharge is in lieu of trial by court-martial, characterization of service is normally under other than honorable conditions.  In the Applicant’s case, nearly half of the less than 4 months of the period of service under review was lost time.  Therefore, the Board found the Applicant’s discharge proper and equitable.

The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 31 May 2005 and Present, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, absence without leave for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial].

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
 		Washington Navy Yard DC  20374-5023